893.102S/2524: Telegram
The Ambassador in China (Gauss) to the Secretary of State
[Received July 12—10:30 a.m.]
285. Reference Shanghai’s No. 824, July 9, 4 p.m., regarding the Chinese courts in the Settlement. I perceive no objection to the action proposed by Lockhart but suggest that we cannot possibly accept any pretense that the Nanking puppet régime would be acting independently and without Japanese instigation and support, and that therefore Lockhart in taking the action contemplated should avoid the implication that the disposition of the courts is a matter for discussion and decision between the Nanking régime and the interested consuls and should make it quite clear that responsibility for attempted interference with the existing courts will rest squarely on the puppets and their Japanese principals. Should the necessity arise, I recommend that, at the proper moment, strong representations should be made by the interested Consuls to the Japanese Consul General at Shanghai and perhaps by the interested diplomatic representatives [Page 867] [in] Tokyo to the Japanese Government objecting to any proposed interference with the existing Chinese courts at Shanghai which function under a court agreement to which the several powers are parties and placing on the Japanese the full responsibility for any action by their puppet régime in China.
I am of the opinion that the continuance of the existing Chinese criminal and civil courts in the Settlement would not be incompatible even with a military occupation of the Settlement if such should occur; that the system of Chinese courts in the Settlement was set up under an agreement between China and the interested powers including the United States and the system cannot therefore be lightly set aside at the instance of one or more of the signatory powers without regard for the others; but that on the other hand the conduct of the Chinese courts under the present emergency should be such as carefully to avoid all possible complaint of political influence or control in their administration of strict, swift and exact justice.
If the situation at Shanghai in regard to the courts reaches the point where some compromise on the present setup must be considered—always short of placing them under Nanking puppet régime—I suggest that an effort might be made to obtain agreement amongst the signatories of the court agreement for a temporary arrangement which would remove the courts for the time being from their status over [under?] Chinese Government and place them under the supervision of the provisional Municipal Council. I do not believe that it would be possible under present conditions to place the courts under the control and supervision of the foreign consuls since the latter can act only by unanimous agreement; but it is possible that in order to save the situation at Shanghai it may be possible for the consuls to reach unanimous agreement to place the courts under the provisional Municipal Council which, should it be necessary to take any action in respect to the courts, might do so by majority vote.
Sent to the Department. Repeated to Shanghai and Peiping.